heirs. He died a bachelor, and intestate. Is his heir
to be traced through Jus father, or through his mother, and
luhy ?
A. Through his father, because the settlement broke the
line of descent, and constituted A " the purchaser" (3 & 4
Wm. 4, c. 106, sec. 3), and as A has no issue, the descent is
traced through A's nearest lineal ancestor, who is his father.
(Rules 5 and 6.)
Q. What are the different modes of descent of lands held
in gavelkind, and borough English respectively ^
A. The descent of gavelkind and borough English lands
follows the rules which apply to ordinary freeholds so far as
those rules are consistent with the peculiar customs of either
tenure ; e.g., in both tenures, the descent goes to males before
females, to hneal heirs before collateral heirs. In gavelkind,
by special custom, all the sons inherit equally, and this
applies to collaterals. In borough English the younger sou
inherits, but this does not apply to collaterals.
Q. A (a bastard) dies intestate, seised in fee simple of
land, and leaving a ividoiv, B, and an only child, C. C dies
intestate, an infant. Could B at common law, and can she
noiu, inherit "^
A. B at Common Law could not inherit, as a bastard
can have no heirs except those of his body ; but since Lord
8t. Leonard's Act (22 & 23 Vict., c. 35), she will inherit,
as the heir of C, who was the person last entitled.
88 THE student's guide to the law of
Q. Tenant in fee of some, and in tail male in possession
of other, com^mon socage and gavelkind lands, died in 1878
intestate, leaving a ividow and the following issue: two
daughters of his deceased eldest son, two sons, and a son of
his deceased daughter. Who are entitled to the lands, and for
what estates and interests ?
A. The fee simple socage lands descend to the two
daughters of the deceased eldest son, as coparceners (rules 1,
2, 3, and 4) ; the fee simple gavelkind lands descend to the
two living sons and to the two daughters of the deceased
son taking per stirpes, as coparceners (the same rules varied
by the custom of gavelkind) ; the entailed socage lands des-
cend to the elder of the two living sons, the daughters of the
deceased son being excluded by the limitation in tail male
(the same rules) ; the entailed gavelkind lands descend on the
two living sons as coparceners in tail male (the same rules
varied by custom and limitation).
Q. Tenant in tail general died in 1880, leaving issue only
three daughters — Mary, Eliza and Jane. Mary died in 1883,
leaving a husband and an only son. Eliza died in 1884, a
spinster. There has been no disentail. Who are noiv entitled,
to the land, and in what shares, and for what estates ?
A. Mary, Eliza and Jane took as coparceners in tail
general (rules 1, 2, 3). On Mary's death, her share descended
to her son in tail general (rule 4), subject to her husband's
life estate by curtesy. On Ehza's death, her share descended
on her sisters Mary and Jane as coparceners in tail general
(rules 1, 2, 3), but Mary being then dead, her share went to
her son in tail general (rule 4) freed from curtesy.
Q. A married woman, tenant in tail in possession, dies
leaving a husband and an only son ; what estates in the land
do the husband and son respectively take, and ivhat estates can
either of them convey to the other, and by what means ?
A. The husband takes a life estate as tenant by curtesy,
and the son takes an estate tail subject to that life estate.
REAL AND PERSONAL PROPERTY. 89
The husband can by deed surrender his hfe estate to the son,
so as to merge it and accelerate the estate tail into possession.
The son can (if 21) bar the entail, and so acquire a fee simple
absolute ; and he can then conve}^ that estate by a deed of
release to his father, and so merge the life estate in the
fee. The father also has the powers of a tenant for life
under sec. 58 of the Settled Land Act 1882, and can sell
and convey the fee simple to the son under that Act, the
result being that the life estate of the father and the estate
tail in remainder of the son would attach to the purchase-
money and the lands be freed.
Q. What is meant by " next of kin " and ** statutory next of
kin " ? A dies leaving a father, a mother, a luife, a son, and -j-
two grand-daughters, the children of a deceased cldld. Who
are A''s next of kin, who are his statutory next of kin, and who
are beneficially entitled to the personalty of tuhich he dies
intestate ?
A. Next of kin means those who literally are the nearest
of kin in the strict sense of the word ; while statutory next
of kin means those persnos who under the Statutes of
Distribution are entitled to share in the personal estate of
an intestate, and thus includes persons who, not being them-
selves next of kin, take as representing deceased next of kin,
A's next of kin are his father, mother and son. A's statutory
next of kin are his wife, son, and two grand-daughters ; and
the wife takes one-third of the personalty, the son another
third, and the two grand-daughters the remaining third
equally, because issue of the intestate always take per stirpes.
Q. State the general effect of the rides by ivJiicJi the '
succession to the residue of an intestate's personal estate is
regidated.
A. The widow takes a third if the intestate left a child or
children ; and, subject to her share, the children take the
whole equally between them, and if any child has died
leaving issue such issue always take the parent's share per
90 THE student's GUIDE TO THE LAW OF
stirpes (In re Natt, 57 L. J., Ch., 797). If there is no
issue, the widow gets i^oOO charged rateably on the realty
and personalty (Intestates Estates Act 1890) and also half
the residue, and the other half goes to the next of kin,
who would be the father, if living. Failing a father, the
mother and brothers and sisters of the deceased take
equally, and if any brother or sister is dead leaving issue,
the issue take the parent's share 'per stirpes if any of the
prior class {i.e., a brother or a sister or the mother) are living.
No representation is allowed after brothers' and sisters'
children. Beyond the above details it is simply a question
for enquiry as to who are the nearest next of kin.
Q. A died intestate and childless, and luithout leaving
father or mother, but leaving a widow, a half-brother, and two
nephews, the children of his only sister of the whole blood
deceased. He never hoA any other brother or sister. Who are
entitled to his real and personal estate respectively, and for
what interests, and in what shares ?
A. The widow first gets i'500 rateably out of the realty and
personalty (Intestates Estates Act 1890). Then the widow
gets dower (if not barred) out of the real property, and (subject
to the dower) the real property goes to the elder of the two
nephews absolutely (rule 7). And the personalty goes as to
one moiety to the widow, and as to the other moiety half goes
to the brother of the half-blood, and the other half equally
between the nephews, taking per stirpes.
Q. A died iidestate, leaving his farther, a 'widotv, and a
child. B died intestate, leaving several children, but no father,
mother or widow. G died intestate leaving no child or repre-
sentative of one, but a widow and a father. D died intestate
leaving no child or representative of one, no father or mother,
bid a luidoiu and several brothers and sisters. State between
whom, and in what shares, the several personal estates of A, B,
C, and D are divisible.
A. (1) One-thira of A's personalty goes to his widow and
EEAL AND PERSONAL PROPERTY. 91
the remainder to his child. (2) B's personalty is divided
equally amongst his children. (3^ C's personalty is divided
equally between his widow and father after the widow has
first got her £500 under the Intestates Estates Act 1890.
(4) After D's widow has had £500, half of D's personalty
goes to his widow and the other half equally between his
brothers and sisters. (22 & 23 Chas. 2, c. 10 ; 1 Jas. 2,
c. 17, sec. 7.)
Q. A man dies intestate leaving real and personal estate,
a ividow, and no relative by blood. To tvhom, and in luhat
shares, does his property belong <^
A. The widow first gets £500 rateably out of realty and
personalty (1890 Act). Then subject to his widow's dower
(if not barred) his real estate escheats to the Crown, whether
it is legal or equitable, corporeal or incorporeal (47 & 48
Vict., c. 71, sec. 4) ; and the widow takes half the personalty,
whilst the other half goes to the Crown as bond vacantia.
Q. A man died intestate luithout child or father, but leav-
ing his tvife, his mother, txvo brothers, three sisters, and ten
nepheivs and nieces him surviving. Who are entitled, and in
ivhat shares to his personal estate 1
A. The wife takes £500 and a moiety of the balance ; and
the remaining moiety is divided equally between the mother,
brothers, and sisters, the ten nephews and nieces taking per
stirpes the share to which their deceased parent would have
been entitled.
Q. Freehold land ivas limited to the -use of A in tail r>ude,
remainder to B in fee. B by his will devised all his real estate
to A. (1) If, under these circumstances, A dies intestate
leaving issue only a son, ivhat estate will the son take ? (2) //"
A dies intestate leaving only a daughter, luJtat estate will tlce
daughter take ;<^ (3) In either case will A's widow be dowable ?
A. The estate tail does not merge in the remainder in fee
because of the statute De Donis. {!) The son, therefore,
takes an estate in tail male, with a remainder in fee simple, as
92 THE student's guide to the law of
heir-at-law of his father the purchaser. (2) The estate tail is
extinct, as A the purchaser has no male issue ; the daughter,
therefore, takes a fee simple absolute in possession by descent
from A. (3) In both cases A's widow is entitled to dower,
if it is not barred.
Q. A purchases land and dies intestate, leaving a luife,
son and daughter. His property comprises lands held in fee
simple, in tail general, pur autre vie, and for terms of years.
In ivhom do these properties vest ?
A. The fee simple lands go absolutely to the son, subject
to dower (if not barred) ; the tail general lands go to the son
as tenant in tail by descent, subject to dower (if not barred) ;
the estate. j5?<r autre vie, if granted to the deceased and his
heirs, will go to the son as special occupant, but if merely
granted to the deceased will go to the deceased's administra-
tor as part of his personal estate (1 Vict., c. 26, sees. 3 & 6) ;
and the terms of years pass to the deceased's administrator
as part of his personalty. Until an administrator is ap-
pointed, the personalty vests in the President of the Probate
Division.
Q. A testator died in 1883 having by his vjill, dated in the
same year, bequeathed a share in his residuary estate to trustees,
upon trust to pay the income to his daughter for life, and after
her death for her children equally. The daughter died in
1885, having had three children only — namely, John, luho
died in the testator'' s lifetime leaving issue ; Henry, who sur-
vived the testator and died in his mother s lifetime leaving
issue; and Jane, %vho is living, an infant, and ma.rried.
Advise the trustees as to the distribution of the fund.
A. I should advise the trustees that neither John nor
his issue took anything, for though 1 Vict., c. 26, sec. 33,
provides that there shall be no lapse in the case of a gift
to a child or other issue of the testator who dies leaving
issue, yet it has been held that this provision does not apply
to a bequest to children as a class (Brown v. Hammond,
REAL AND PERSONAL PROPERTY. 93
1 Johns, 210.) I should advise them that Henry took half,
and to enquire whether he had left a will, and if not as
far as it is personalty letters of administration must be
taken out, and as far as realty it will go to his heir. I
should also advise them that Jane took the other half, hut
she being an infant it cannot be paid over to her, and a
guardian should be appointed. (See Viner v. Francis,
Indermaur's Conveyancing and Equity Cases, 38.)
Q. Explain the meaning of the term Hotchpot.
A. Hotchpot appears to have originally meant a pudding,
as being composed of things mixed or placed together. It
was applied, as regards lands held in the obsolete tenure of
frankmarriage, to prevent the owner of such lands taking any
share as a coparcener on the death of the ancestor from
whom the lands were derived, without bringing those lands
into the common lot. Under the statute for the distribution
of the personalty of intestates, it is used to prevent any
child taking a larger share than he or she would be entitled
to if the advances made during the deceased's life were
taken into account. And it is commonly incorporated into a
settlement of personalty to prevent any child, to whom a
share is appointed, claiming to share in the unappointed
part without bringing the appointed share into account.
6. — Ownership.
Q. Define an estate in severalty^ joint tenancy, and tenancy
in common.
A. An estate in severalty is held by a man in his own
right only without any other person being joined with him in
interest during his estate. A joint tenancy is where an estate
is acquired by two or more persons in the same property, by
the same title (not being descent), at the same time, and
without words importing that they are to take distinct
shares. A tenancy in commoij is where two or more persons
hold the same land with interests accruing under different
94 THE student's guide to the law of
titles, or under the same title (not being descent) but at
different periods, or conferred by words of limitation im-
porting that they are to take in distinct share. (1 Stephen's
Commentaries.)
Q. Hoiu did a tenancy by entireties arise, and ivhat luere
its incidents ? Can it arise noiv ?
A. It arose by a gift to two persons, who were husband
and wife, and their heirs. The husband took the rents and
proiits during his life, but could not dispose of the inheritance
without his wife's concurrence. Unless they both agreed in
making a disposition, each of them ran the risk of gaining
the whole by survivorship, or losing it by dying first. Such
a tenancy cannot now arise in consequence of the provisions
of the Married Women's Property Act 1882.
Q. If freehold land he limited to A and B {husband and
— j— wife) and G and their heirs, what shares, estates^ and interests
do A, B and G respectively acquire in the land ?
A. If the limitations are in an instrument coming into
operation before 1883, A and B as one legal personage and C
as another legal personage are joint tenants in fee, and with
regard to A and B's rights between themselves they possess
a tenancy by entireties. If the limitations are in an instru-
ment coming into operation on or after 1st January, 1883,
the result is the same ; except as regards the rights of A and
B between themselves as to their moiety, which are those of
any strangers and not those of tenants by entireties (In re
March, Mander v. Harris, 27 Ch. Div., 166 ; In re Jupp,
Jupp V. Buckwell, 57 L. J., Ch., 774).
Q. What is coparcenary ? Gan men be coparceners ?
A. Coparcenary is where two or more form a joint heir.
Females always inherit as coparceners ; but males do so only
under the custom of gavelkind tenure.
Q. By which modes onay joint tenancy, tenancy in common,
and coparcenary, be converted into estates in severalty ?
A. A joint tenancy may be severed by partition (voluntary,
REAL AND PERSONAL PROPERTY. 95
or compulsory under the Partition Acts 1868 and 1876) ; by
alienation intci- vivos of his share by any joint tenant by abso-
lute conveyance (which includes a mortgage) without partition,
which makes the alienee a tenant in common with the re-
maining joint tenants ; by a deed of release to one joint tenant
by the others, which gives him an estate in severalty ; by the
jus accrescendi ; and by accession of interest, as if there be
two joint tenants for life and one obtains the inheritance this
severs the jointure. A tenancy in common may be severed
by partition (as above stated) ; or by all the titles and shares
being united in one person, either by conveyance or descent.
Coparcenary may be severed in the same two ways as tenancy
in common, and also by one coparcener alienating her share
because that destroys the essential unity of title.
Q. By what words may joint tenancy and tenancy in
common resjjectively he created amongst children ? (a) A
father having four children bequeaths his residuary personalty
to all his children " equally:' One son dies in his lifetime.
(b) An uncle bequeaths £2,000 to his nepheius, A, B and G.
A dies in his lifetime. Hoiu are the residue and the legacy
respectively divisible f Does it in either case make any
difference whether the deceased person left issue living at the
testator's death ?
A. No technical words are needed, but a gift to children
as a class will create a joint tenancy, unless words are used
showing that the testator intended each child to take a
separate and distinct share, (a) This creates a tenancy in
common, because of the word ''equally," but only the
children living at the testator's death will take. (See
Brown v. Hammond, ante, page 92.) (b) Thei;2,000 legacy
creates a joint tenancy, and must be divided between
B and C, A's share failing. It makes no difference in either
case that the deceased person left issue living at the testator's
death.
Q. Residue consisting of freeholds and leaseholds was
THE STUDENT S GUIDE TO THE LAW OF
devised to trustees upon trust to alloio A to receive the rents for
her life, and after her death to sell andj divide the proceeds
equally hetiveen the testator s nepheivs, B, C, Z), and E, and
their respective executors, administrators and assigns. B died
in the testator's lifetime. G died in A's lifetime. A is dead,
and all the "propeHy has been sold in one lot for ^8,000. Who
are entitled to the money and in tvhat pjroportions ?
A. This is a gift to B, C, D, and E as tenants in common.
B's share lapses and goes to the heir and next-of-kin of
testator according to proportion of realty and personalty.
C's interest, however, was vested immediately on testator's
death, and will go to his representatives, or according as he
has dealt with it. D and E take their shares.
Q. How should a limitation to three persons as tenants
in common in fee, and another to three persons as joint
tenants in fee, he framed ? Staie the course of descent in
each case.
A. Some words must be used to indicate the intention
that the grantees are to take distinct shares, otherwise the
limitation will be treated as creating a joint tenancy. The
limitations should be to X, Y and Z, as tenants in common
in fee ; and to X, Y and Z as joint tenants in fee, or simply
to X, Y and Z and their heirs. Under the tenancy in
common, the descent of each tenant's undi\aded share is
traced from him as purchaser by the ordinary rules of
descent ; but so long as the joint tenancy exists, the jus
accrescendi determines the descent, so that the ultimate
survivor will take the whole, and the descent will then be
traced from him as purchaser.
Q. What is the proper form of assurance between joint
~T tenants, and tvhy ? And between tenants in common, and why ?
A. Between joint tenants, a deed of release which operates
to extinguish a right, for each joint tenant of a freehold
estate is already seised of the whole land; but between
tenants in common a conveyance is necessary, for each tenant
REAL AND PERSONAL PROPERTY. 97
ill common has a separate title, is seised of an undivided and
certain share, and therefore has to convey that share.
Q. It being a rule of the Cumtnon Law that the estate of
joint tenants must arise at the same time, state ivhat exceptions
have been established to this rule.
A. The exceptions are : (1) Where the estates take effect
under the Statute of Uses, e.g., if A hmits lands to the use of
himself and his future wife for life, and afterwards marries,
they are joint tenants for life ; (2) devises, which stand on the
same footing as uses ; and (3) bequests.
Q. Hoiu can a partition be obtained between joint tenants
or tenants in common, ivhen tliey cannot agree ?
A. By any of the tenants In'inging an action for partition
in the Chancery Division, or, if the property does not exceed
£500 in value, in the local County Court ; or by application
to the Land Department of the Board of Agriculture to make
an order for partition under their seal. In a partition action —
the Court (1) may direct a sale and division of the proceeds
at its discretion, (2) may direct a sale on aj)plication by any
interested party unless the other parties will agi-ee to buy
his share, and (3) must direct a sale if parties interested to
the extent of a moiety request it, unless it sees good
reason to the contrary (31 & 32 Vict., c. 40; 39 & 40
Vict., c. 17).
Q. ^Yhat is the general rule us to survivorship in — (a)
estates, (b) the benefit and burden of covenants, (c) the exercise
of poiuers vested in, or entered, into by or with, two or more
persons? Shoiv ivhat exceptions have been introduced by modern
legislation in any of the above-mentioned cases.
A. (a) Survivorship of estates is applicable to joint
tenants only as distinguished from co-parceners and from
tenants in common. (Edwards, 156.) (b) In the case of
covenants for title by joint tenants, each covenants s
as to his own acts, for otherwise all would bo liable
acts of each, and the whole burden (^f the covenant
H !
4-
98 THE student's guide to the law of
devolve on the survivor ; but if the conveyance is io joint
tenants, the covenants should be entered into with them
jointly, so that the survivors may get the full benefit.
(Goodeve's Eealty, 251.) The benefit and the burden of
covenants creating a debt entered into by or with two or
more persons jointly will pass to the survivor. By the
Bankruptcy Act 1883, the discharge of a bankrupt shall
not release any person who w^as jointly Hable with him.
After the decease of one joint debtor the survivor may be
sued for the whole debt as though the deceased had no .
share in it, and the estate of the deceased will be discharged
from all liability both at law and in equity. (Williams'
Personalty, 399.) Partnership debts are joint only, but the
estate of a dead partner may be separately sued (1890 Act).
(c) A power given to two or more persons by name, and not
expressly made exerciseable by all or any of them, must be
exercised by all the donees, and if one dies the survivor
cannot exercise it. But the Conveyancing Act 1881, says
a power given to two or more executors or trustees jointly
may be exercised by the survivor (sec. 38), and the
Conveyancing Act 1882, says that where a joint power
has been disclaimed by one of the persons to whom it is
given, the others, or other, or survivor, may still exercise
it (sec. 6). In both cases a contrary intention expressed
in the instruments will prevent the Act applying. (Edwards,
211.)
7. — Future Estates and Interests.
Q. What is the difference between a reversion and a
remainder ?
A. A reversion is the residue of an estate left in the owner
of property after he has granted out a smaller (particular)
estate than he himself possesses ; whilst a remainder is
where, by the same instrument that creates the particular
estate, the whole or part of the reversion is granted out to
take effect in possession after the particular estate. A
REAL AND PERSONAL PROPERTY. 99
reversion arises by act of the law, a remainder by the act
of the parties. Tenure exists between the owner of the
particular estate and the owner of the reversion, but
not between the owner of the particular estate and the
remainderman.
Q. Define a vested re^nainder, a contingent remainder, and
an executory interest.
A. A vested remainder is one which is necessarily capable
of taking effect whenever the particular estate on which it is
dependent comes to a termination, e.g., grant to A for life,
remainder to B and his heirs. A contingent remainder is
one where, from some uncertainty affecting itself, either as
to the person intended to take or the happening of the event
on which it is to take effect, the remainder itself is in a state
of contingency, e.g., a grant to A for life with remainder to
the son of B, a bachelor, or a grant to A for life, remainder
to B for life, remainder in case B dies before A to C for life.
An executory interest is a future estate, arising of its own in-